These factsheets explain what happens when someone is suspected or accused of a crime which is dealt with by a trial in court.
Under Austrian law, you commit an offence only when you violate a specific legal provision in force at the time the act was committed. The right of prosecution is a right of the State. The prosecuting authorities and , under their direction, the criminal investigation department, as well as the courts, must determine the facts and clarify all circumstances that are of importance when assessing the facts.
These factsheets explain what happens when someone is suspected or accused of a crime which is dealt with by a trial in court.
Under Austrian law, you commit an offence only when you violate a specific legal provision in force at the time the act was committed. The right of prosecution is a right of the State. The prosecuting authorities and, under their direction, the criminal investigation department, as well as the courts, must determine the facts and clarify all circumstances that are of importance when assessing the facts.
In the following factsheets, you will learn about your rights as a defendant if criminal proceedings are brought against you in Austria. You have different rights during the different stages of the proceedings. The most important stages in the proceedings will be explained in summary form so that you can quickly access the information that you need.
In principle, the criminal proceedings in Austria consists of three stages:
Details about all these stages in the proceedings and about your rights can be found in the factsheets. This information is not a substitute for legal advice and is intended to be for guidance only.
If you are the victim of a crime, you can find full information about your rights here.
The national language version of this page is maintained by the respective Member State. The translations have been done by the European Commission service. Possible changes introduced in the original by the competent national authority may not be yet reflected in the translations. The European Commission accepts no responsibility or liability whatsoever with regard to any information or data contained or referred to in this document. Please refer to the legal notice to see copyright rules for the Member State responsible for this page.
No, in principle, this does not affect the investigation.
If you cannot communicate adequately in German, you have the right to request an interpreter, who will be appointed free of charge during your interrogation. You do not have to and should not answer any questions if the interpreter is not present. The interpreter will interpret the questions put to you into a language you can understand. The interpreter will also interpret your answers back into German.
The interpreter must in any case interpret the information and the instructions on points of law which you are required to be given by law. If you so wish, the interpreter will also assist you in your dealings with the assigned defence counsel (but not with a lawyer of your choice).
If you are notified of an order by the prosecuting authorities or of a court decision, you may also request assistance in having these documents translated. If you wish to consult your file, a translator will only assist you if you do not have defence counsel and it is unreasonable to expect you to arrange for the translation of the relevant parts of the file yourself.
The court must take certain steps in the investigation. It must reconstruct the offence and conduct what are known as adversarial proceedings. The public prosecutor and the accused, together with his/her defence counsel, are present during these proceedings and have the right to put questions to the person under interrogation. The prosecuting authorities may also request the court to take further evidence if they consider this necessary in the public interest.
The prosecuting authorities directing the criminal investigation department are responsible for conducting investigations. The criminal investigation department will start the investigation on its own initiative if a third person files a report with the police, or by order of the public prosecutor.
The prosecuting authorities or the criminal investigation department must inform you in every case that you are under investigation and why. Moreover, you must be informed that, as the accused, you are not obliged to make a statement and that if you do make a statement, it may be used in evidence against you.
If you have committed the offence of which you are accused and if you confess to it (if you plead guilty), this will be an important mitigating factor when the court decides on your sentence. However, a plea of guilty will not affect the course of the trial.
The prosecuting authorities and/or the criminal investigation department may take most investigative steps on their own initiative without the consent of the court. These steps include, in particular, inquiries and interrogations, as well as establishing the identity of persons, seizing property, conducting searches of a person’s clothing and any items in his/her possession, etc.
A court order is required to impose and to extend pre-trial detention. The same applies to the use of coercive measures in connection with fundamental rights (e.g. searching places protected by householder’s rights, accessing bank accounts, telephone tapping or analysing phone data).
You may only be taken into pre-trial detention if you are strongly suspected of having committed an offence and if there is also a reason for detention (risk of absconding, risk of evidence being destroyed or risk of committing an offence). The consent of the court is required for your arrest (by criminal investigation department officers) (unless you are caught in the act or there is imminent danger).
Pre-trial detention must be imposed by the court and it must be enforced in a prison. The criminal investigation department may detain you for a maximum of 48 hours before transferring you to the court without undue delay.
The law does not specify whether and how you may inform your family or friends about your detention. Social services are available in every prison to assist you in such matters.
The decision concerning your pre-trial detention must be read out to you, if necessary with the help of an interpreter. You must be given a written copy of this decision. The decision must state the nature of the offence of which you are strongly suspected. It must also mention all facts which in the opinion of the court justify your detention.
You must be represented by defence counsel throughout the full period of your pre-trial detention. If you do not appoint one yourself, counsel will be assigned to you.
The decision of the court to impose pre-trial detention is taken during an oral hearing.
Within a period of three days, you may appeal to the Higher Regional Court against the decision to impose, or later extend, pre-trial detention.
Any decision concerning pre-trial detention is for a limited period of time. The decision to impose pre-trial detention is effective for fourteen days. The decision extending your pre-trial detention for the first time is effective for one month. Any subsequent decision extending your detention is effective for two months.
Pre-trial detention should not be longer than six months in total, but it may be extended owing to the seriousness of the offence.
You have different rights depending on the various steps and stages of the investigation:
In any event, you have the following rights irrespective of the specific stage of the proceedings:
The most important stages where you must have defence counsel are: the entire period of pre-trial detention, throughout proceedings for the institutionalisation of offenders with mental health issues, proceedings before a lay judges’ court or a jury court, or trial before a single judge, if the offence may carry a prison sentence of more than three years.
If you cannot communicate adequately in German, you have the right to request an interpreter, who will be appointed free of charge during your interrogation. You do not have to and should not answer any questions if the interpreter is not present. The interpreter will interpret the questions put to you into a language you can understand. The interpreter will also interpret your answers back into German.
The interpreter must in any case interpret the information and the instructions on points of law which you are required to be given by law. If you so wish, the interpreter will also assist you in your dealings with assigned defence counsel (but not with a lawyer of your choice).
If you are notified of an order by the prosecuting authorities or of a court decision, you may also request assistance in having these documents translated. If you wish to consult your file, a translator will only assist you if you do not have defence counsel and it is unreasonable to expect you to arrange for the translation of the relevant parts of the file yourself.
As an accused person you have the right to consult your file. In this way you will learn more about the evidence against you. In exceptional cases, individual parts of the file may not be accessible for consultation. You have the right to present your own evidence at any time.
You do not have to have a lawyer, except in cases requiring representation by defence counsel. However, irrespective of whether you are being detained or not, you have the right to consult a lawyer at any time, if you wish. An interpreter must also be made available in your dealings with the assigned defence counsel.
If you are arrested and know the name of a lawyer whom you wish to defend you, you may also contact him/her directly or through the police. If you do not know any defence lawyers, you can use the standby service of the bar association.
During every stage of the proceedings you have the right to defence counsel of your choice or to apply for legal-aid defence counsel. If the facts or the legal issues are complex, you may ask for legal-aid defence counsel to be assigned to you for the entire proceedings. In criminal proceedings against foreigners, unfamiliar with the Austrian legal system, this will most likely be the case. In all cases in which it is a requirement, defence counsel will be assigned to you in any event if you do not appoint one yourself. If you are not represented by legal-aid defence counsel, you must bear the cost of the assigned defence counsel.
a. Presumption of innocence
The prosecuting authorities must discontinue the investigation if no criminal offence has been committed, or if the established facts are insufficient to convict the accused. In all other cases where the facts have been sufficiently determined, the prosecuting authorities must file an action with the competent court.
b. Right to remain silent and not to incriminate oneself
Persons have the right to remain silent if, for example, they would otherwise expose themselves or a relative (Section 156(1)(1) of the Code of Criminal Procedure (Strafprozeßordnung)) to a risk of criminal prosecution or, in connection with criminal proceedings brought against them, to a risk of incriminating themselves more than in their previous testimony.
If children or minors have themselves been victims of or witnessed violence, they have the right to psychosocial and judicial assistance.
The prosecuting authorities must discontinue the investigation if no criminal offence has been committed, or if the established facts are insufficient to convict the accused. In all other cases where the facts have been sufficiently determined, the prosecuting authorities must file an action with the competent court.
The national language version of this page is maintained by the respective Member State. The translations have been done by the European Commission service. Possible changes introduced in the original by the competent national authority may not be yet reflected in the translations. The European Commission accepts no responsibility or liability whatsoever with regard to any information or data contained or referred to in this document. Please refer to the legal notice to see copyright rules for the Member State responsible for this page.
The trial will take place at the court where the prosecuting authorities filed the final charges. As a rule, this will be the court with local jurisdiction where the criminal offence was committed. Trials are public with a few exceptions.
Depending on the nature of the penalty, the decision will be taken by a single judge, a lay judges’ court or a jury court. Lay persons also sit in lay judges’ courts or jury courts.
Once charges have been filed against you, it is no longer possible to restrict access to the files. From this point on, at the latest, you have access to the entire file made available to the court. The court will make preparations for the trial.
You may request evidence that will help you prepare for the trial, if you wish. In particular, you can ask to question witnesses. In your request for evidence, you must indicate which facts you wish to prove by means of the evidence in question. You may also be asked to state the reason why you believe that the evidence you have requested is appropriate.
If you are accused of a further offence during the trial, the prosecuting authorities may extend the charges against you and the trial may be extended to include the new charges, unless they carry a harsher sentence than the original charges.
In its decision the court is only bound by the facts described in the bill of indictment and not by any legal assessment given by the prosecuting authorities. The court may qualify the offence with which you have been charged differently from the classification given by the prosecuting authorities in the bill of indictment.
As throughout the entire criminal proceedings, you also have the right to remain silent during the trial. You do not have to comment on the charges brought against you.
If you admit to the charges during the trial, this will also have a mitigating effect when the sentence is determined. However, an admission of guilt will not change the course of the trial. You will not be punished if you do not tell the truth.
Lay judges’ courts and jury courts may not conduct proceedings in your absence. Furthermore, you must also always be represented by defence counsel in such proceedings. There are no provisions for trial by video-conference.
If you do not sufficiently understand German, the services of an interpreter must be engaged for the trial. The interpreter will interpret the main events during the trial into a language that you understand.
During the trial, you also have the right to submit requests, especially requests for evidence.
In a trial before a lay judges’ court or before a jury court, you must be represented by defence counsel, whereas, for other types of proceedings, the appointment of defence counsel is optional.
You may change your defence counsel of choice at any time. However, this must not unreasonably prolong the proceedings.
You are not under any obligation to remain in Austria for the whole of the investigation. If you wish, you can also ask your lawyer to ensure your rights are protected during the investigation.
In principle, you will need to come to Austria for any questioning. During the investigation, a video link can only be used if the Austrian prosecuting authorities make a request to that effect, you agree to this procedure and your country provides for the questioning of accused persons via video link. However, the accused cannot be questioned by telephone.
If you do not sufficiently understand German, the services of an interpreter must be engaged for the trial. The interpreter will interpret the main events during the trial into a language that you understand.
In a trial before a lay judges’ court or before a jury court, you must be represented by defence counsel, whereas, for other types of proceedings, the appointment of defence counsel is optional.
You may change your defence counsel of choice at any time. However, this must not unreasonably prolong the proceedings.
The national language version of this page is maintained by the respective Member State. The translations have been done by the European Commission service. Possible changes introduced in the original by the competent national authority may not be yet reflected in the translations. The European Commission accepts no responsibility or liability whatsoever with regard to any information or data contained or referred to in this document. Please refer to the legal notice to see copyright rules for the Member State responsible for this page.
A defendant may appeal to a higher court against any court decision to convict. In the case of judgments by district courts and by single judges in regional courts, a full appeal may be lodged. Its purpose is to challenge both the verdict of guilty and the decision on the sentence. In these proceedings, you may also request that new evidence be taken, or you may present new evidence.
In the case of judgments by lay judges’ courts or jury courts, you may only appeal against the sentence, but not the verdict of guilty. These judgments may only be challenged by an appeal for invalidity, in which you may claim errors in procedure in the grounds for the decision and errors in law.
You cannot challenge the judge’s assessment of the evidence. No new evidence may be entered.
You must announce your intention to appeal against a judgment either immediately, when the judgment is pronounced, or within a maximum of three days. The court will then issue the judgment in writing and serve it upon you or your defence counsel. Your counsel must then file the appeal in writing within four weeks.
The prosecution has the same right of appeal.
A defendant may appeal to a higher court against any court decision to convict. In the case of judgments by district courts and by single judges in regional courts, a full appeal may be lodged. Its purpose is to challenge both the verdict of guilty and the decision on the sentence. In these proceedings, you may also request that new evidence be taken or you may present new evidence.
In the case of judgments by lay judges’ courts or jury courts, you may only appeal against the sentence but not the verdict of guilty. These judgments may only be challenged by an appeal for invalidity, in which you may claim errors in procedure in the reason for the decision and errors in law.
The Federal Police Directorate in Vienna maintains a criminal register for the whole of Austria. It contains, in particular, the following information:
No appeal is possible against entries in the criminal register. Depending on the seriousness of the crime, entries in the criminal register are deleted after a certain period of time.
It is possible to serve your sentence in your home country if you so wish or if you agree. You will find the applicable rules in the Convention on the Transfer of Sentenced Persons (in particular Article 3).
The national language version of this page is maintained by the respective Member State. The translations have been done by the European Commission service. Possible changes introduced in the original by the competent national authority may not be yet reflected in the translations. The European Commission accepts no responsibility or liability whatsoever with regard to any information or data contained or referred to in this document. Please refer to the legal notice to see copyright rules for the Member State responsible for this page.